Peter L. Strauss (Columbia Law School) has posted The Administrative Conference and the Political Thumb (George Washington Law Review, Forthcoming) on SSRN. Here is the abstract:
Two recent drafts posted on SSRN identify very different yet canonical lines of cases, both prominent in the teaching of administrative law, as the source of ills stemming from the pre-notice period of contemporary rulemaking. That period has assumed a determinative importance in seeming conflict with the assumptions of flexibility inherent in the Administrative Procedure Act’s provisions for public comment on notices once published. In “The Administrative Conference and Empirical Research,” SSRN abstract 2435638, Richard Pierce celebrates the catalyzing effect the Administrative Conference of the United States has had on hands-on empirical research about administrative law. He finds in two recent studies of the pre-notice period evidence that imbalance in industrial contacts during that time produces inflexible, biased proposals and he lays much of the blame at the feet of judicial review doctrines imposing detailed requirements of notice and explanation, while asymmetrically limiting standing. In “Classical Administrative Law in the Era of Presidential Administration,” SSRN abstract 2449258, on the other hand, Liza Heinzerling agrees that pre-notice considerations create conditions for inflexibility in rulemaking proposals; but she attributes this to presidential influence via OIRA’s administration of regulatory impact analysis requirements – influence blessed and protected from judicial review by Judge Patricia Wald’s canonical decision in Sierra Club v. Costle, 657 F.2d 298 (1981). Taking off from Professor Pierce’s welcome celebration of ACUS’s contribution to empirical research about administrative law, my essay reviews ACUS’s distribution of research and recommendation topics; it suggests that, like Judge Wald in Sierra Club and perhaps understandably, ACUS has been hesitant to explore or comment on the role of politics in administrative law – and particularly so where OIRA is concerned.